FAQ on Fixed Term Parliament Act — Projek SAMA

JANUARY 18 — Frequently Asked Questions (FAQs), answered by Projek SAMA

Q1. What are the key features of the FTPA proposed by Projek SAMA? The Fixed Term Parliament Act proposed by Projek SAMA is one simple but powerful idea：

The Parliament shall serve its full term of five (5) years unless one of these two exceptions applies:

(a) The Prime Minister loses the confidence of Dewan Rakyat; OR,

(b) Two-thirds or more members of Dewan Rakyat pass a resolution to call for an early dissolution.

The “exceptions” are designed to be the product of ordinary parliamentary activity. The exceptions do not bypass or dilute any part of the Federal Constitution, including Articles 40 and 43 which inform government formation and dismissal.

Q2. In the proposed FTPA, what would constitute loss of confidence in the government?

The government is deemed to have lost the confidence of the Dewan Rakyat only if any of these happens:-

(a) A motion of no-confidence in the Prime Minister is passed in the Dewan Rakyat; OR

(b) A motion of confidence in the Prime Minister is defeated in the Dewan Rakyat; OR

(c) A budget (Supply Bill) is defeated in the second or third reading.

This explicitly excludes counting of Statutory Declarations (SDs) as a method to determine loss of confidence.

Any motion of confidence or no-confidence must be prioritised in the Dewan Rakyat, and as a package, the procedures for the passing of motions of confidence or no-confidence must be clearly set out in the Standing Orders of the Dewan Rakyat.

Q3. What positive effects can the proposed FTPA bring to Malaysia?

First, dismissal of the government can only be done in a transparent manner on the floor of Dewan Rakyat. It cannot be done by any process shrouded in secrecy, such as the counting of SDs.

Second, the power to seek royal consent for early dissolution of Parliament will be shared amongst parliamentarians. This power will no longer be monopolised by the Prime Minister.

Third, unless either of the exceptions takes place, the date of Parliament’s dissolution will be known five years in advance. This assured lifespan will enhance predictability and stability of governments and policies.

Q4. Will the proposed FTPA compromise the monarch’s power under Article 40(2)(b) and Article 43(4) of the Federal Constitution?

Absolutely not. The proposed FTPA does not affect Article 40(2)(b) of the Federal Constitution. The Yang di-Pertuan Agong (YDPA) can act in his discretion to withhold consent to a request for the dissolution of Parliament.

The FTPA only constrains the discretionary power of the Prime Minister in seeking royal consent for early dissolution. If he/she still enjoys the confidence of the Dewan Rakyat, he/she will have to share that power with fellow parliamentarians who constitute a two thirds majority.

The misperception that the YDPA will lose his discretionary power under an FTPA arises from the wrong assumption that Malaysia’s FTPA must be a carbon-copy of the British FTPA (2011-22) which was formulated in a vastly different constitutional context. The UK has no written constitution and since 1834, its monarchs have stayed above politics.

Both the British FTPA and the one proposed for Malaysia by Projek SAMA allow early dissolutions of Parliament. Both merely restrict the permissible circumstances to a loss of majority, or to the support of early dissolution by a two-thirds majority. — Picture by Shafwan Zaidon

Q5. Will the proposed FTPA deny parliamentarians freedom of choice?

Absolutely not. The proposed FTPA will result in prioritisation of confidence votes in the Standing Orders of the Dewan Rakyat. This prioritisation will enhance parliamentarians’ collective right to oust a government. Signing SDs is not freedom of choice. Signing SDs is a rejection of voter’s expectations embodied in the Federal Constitution that parliamentarians must vote on the floor of Dewan Rakyat.

Q6. Will the proposed FTPA artificially sustain a weak or unpopular government?

Absolutely not. As the proposed FTPA would cause prioritisation of confidence votes in the Standing Orders of the Dewan Rakyat, weak and unpopular governments can be ousted more easily. The proposed FTPA only eliminates the use and abuse of SDs, thereby protecting governments from the distraction of non-stop political speculations and harassment.

Q7. Isn’t the proposed FTPA anti-democratic when it does not allow early dissolutions of Parliament when necessary?

This is a common misperception of FTPA. It arises in the minds of those who read the word “Fixed Term” without studying the details. Both the British FTPA and the one proposed for Malaysia by Projek SAMA allow early dissolutions of Parliament. Both merely restrict the permissible circumstances to a loss of majority, or to the support of early dissolution by a two-thirds majority.

The latter means that the Prime Minister no longer monopolises the power to seek royal consent for early dissolution but instead has to share it with fellow parliamentarians who make up a two-thirds majority. Why should we equate democracy to the dominance of a Prime Minister? If anything, it is more democratic than giving the discretion to one person.

Currently, early dissolution requires the YDPA’s consent as a safeguard against a Prime Minister’s impulsive request. The proposed FTPA merely adds an extra safeguard (two thirds of Dewan Rakyat) without affecting the original safeguard (royal consent). Neither is undemocratic.

Q8. Did FTPA work for the UK? If it did not, how can it work for Malaysia?

The UK FTPA was introduced in 2011 to keep the Conservatives-Liberal Democrats coalition government in place for its full term. The conservative Prime Minister could not unilaterally call for an early election if the Liberal Democrats disagreed. The FTPA worked as intended for two general elections, in 2015 and 2017. In the Brexit crisis, it prevented the conservative governments under Prime Ministers Theresa May and Boris Johnson from calling a snap election to end the deadlock, until Johnson circumvented it with a new law.

In short, the UK’s FTPA was seen as a problem when the opponents to Brexit wanted the government to serve a full term and Parliament to have more time to deliberate and decide on the divisive issue.

In contrast, Malaysia needs an FTPA to stop the Opposition from destablising politics by threatening to shorten the government’s term when they do not even have the number. Hence, even if one agrees that FTPA had failed in the UK, it will still work in stabilising Malaysian politics. As Malaysia lacks established constitutional conventions that can restrain political actors, the proposed FTPA will provide Malaysia a much-needed mechanism in determining the Dewan Rakyat’s confidence in government, vital to the health of parliamentary democracy and constitutional monarchy.

Q9. If the FTPA in the UK could not prevent its circumvention, how can it avoid the same fate in Malaysia?

While the UK’s FTPA imposed a threshold of two-thirds majority to pass a motion calling for an early general election, amending and repealing FTPA only requires a simple majority.¹ Thus, it enabled Prime Minister Boris Johnson to circumvent it by passing another law in November 2019 to fix the date for an early election. Without a higher passing threshold, the changes introduced to an FTPA may “be driven by short-term political incentives rather than robust principles or long-term vision.”²

To avoid this, the proposed FTPA for Malaysia should impose a two-thirds majority threshold to repeal the FTPA or amend its substantial provision on passing a motion to seek early dissolution.

Q10. Besides the UK, which democracies adopt a fixed-term parliament measure?

While the UK Parliament repealed its FTPA 2011 in 2022, its devolved legislatures of Scotland, Wales and Northern Ireland have had their own FTP measures enacted years before the House of Commons.

For example, the Scottish Parliament has had six general elections on the first Thursday of May since 1999 according to schedule, except to postpone by one year in 2015 and 2020 to avoid clashes with the UK general elections.

Fixed-Term Parliament/Legislature measures are also adopted in Norway, Canada (federal and province level), Australia (states level) and South Africa, amongst others.

Q11. Can a Prime Minister circumvent the FTPA to seek an early election in the absence of two-third majority support by tabling a motion of no-confidence?

Yes, this is possible. If the PM or his party has a motion of no-confidence in himself/herself tabled and passed, the PM can request for early dissolution. However, this will hurt the legitimacy of the Prime Minister and as such, there would be little incentive for such a move. Ultimately, such move will fail if the YDPA withholds the royal consent.

Q12. Is FTPA a piece-meal reform that has popped up suddenly as a response to “the Dubai Move”?

Absolutely not. This idea was mooted after the “Sheraton Move” as part of a reform package to reduce political adventurism and majoritarianism.

In August 2021, after the fall of the Muhyiddin government, Bersih, together with ABIM and Gabungan Bertindak Malaysia (GBM), issued a joint statement calling for a 10 points Cross-Party Political Stability Pact between the new government and the Opposition that included the proposal for a FTPA. This call, excluding FTPA, was eventually taken up by Ismail Sabri and a Memorandum of Understanding (MoU) for Political Stability and Transformation was signed between the government and PH.

In October 2021, Bersih published a report titled “Parliament in Government Formation” by parliamentary expert Maha Balakrishnan, examining FTPA and other measures that may strengthen parliamentary democracy.

Subsequently, in November 2022, Pakatan Harapan (PH) promised FTPA in its GE15 manifesto within ‘Chapter 15 Reinforcing Institutional Integrity’.

The Dubai Move — another attempt to destabilise Malaysian politics — only underlines the urgency of having an FTPA as a mechanism to rule out SD-counting as a means of government formation.

Q13. Are there any other reforms that should go hand in hand with the proposed FTPA to make it work more effectively?

Yes. The proposed FTPA must be accompanied by amendments to the Standing Orders of Dewan Rakyat to codify the procedures for motions of confidence and no-confidence. A related constitutional mechanism is the confirmatory vote of confidence (CVC) for every new Prime Minister after his/her appointment under Article 43(2)(a) of the Federal Constitution. This would enhance the legitimacy of the Prime Minister and affirm both parliamentary democracy and constitutional monarchy.

To promote stability and accountability in multiparty democracy, both FTPA and CVC should be followed by other reforms such as, but not limited to, tenure limit for Prime Ministers; Parliamentary Services Act (PSA); recognition of Shadow Cabinet; more parliamentary committees; non-governmental business time in parliamentary sittings; equal Constituency Development Fund (CDF) laws; a Political Finance Act with public funding for political parties; institutional separation of Public Prosecutor from Attorney General; an independent Election Commission (EC) accountable to Parliament; decentralisation and local democracy for all of Malaysia.

Q14. Why should the proposed FTPA take priority over other reforms that have been advocated for longer?

We should seize every opportunity to implement reforms when the need arises. Adopting a maximalist attitude that all reforms must happen at once is naive and unstrategic, resulting in missed opportunities. In any case, when parliamentary democracy and constitutional monarchy are threatened by the abuse of SDs as a means to spread political instability, the proposed FTPA should not be held back just because of misperceptions and unfamiliarity. Instead, more public debates and deliberations are needed to deepen understanding of and widen support for the proposed FTPA.

Q15. Will the proposed FTPA bind all future Parliaments or just the 15th Parliament?

The proposed FTPA can be enacted to bind only the 15th Parliament or both the 15th and all future Parliaments. This should be a key point in the public debate.

Q16. How fast can the proposed FTPA be enacted?

This depends on the political will of the government and the progress of public engagement and debate. The bill and the necessary amendments to the Dewan Rakyat Standing Orders are straightforward and can benefit from the body of research done in and beyond Malaysia. If the public acceptance is high, the bill may be tabled by mid-2024 and can put to rest shadowy plots to destabilise Malaysian politics like the Dubai Move.

¹ Neil Johnston (2019, Oct 29). What does the Early Parliamentary General Election Bill do? House of Commons Library: Insight. https://commonslibrary.parliament.uk/what-does-the-early-parliamentary general-election-bill-do/

² J. Sargeant etal (2023, Sept19). Review of the UK Constitution: Final Report. Institute for Government and Bennett Institute for Public Policy. https://www.bennettinstitute.cam.ac.uk/wp-content/uploads/2023/09/Review-of-UK-Constitution-final report.pdf. At page 21.

* This FAQ is initiated by Project — Stability and Accountability for Malaysia (Projek SAMA), a civil society initiative to advocate for institutional reforms for political stability and accountability as Malaysia steers through the uncharted waters of hung parliament and coalition governments. In Malaysia, we share the common (sama) destiny. Ngeow Chow Ying serves as its convenor. You may contact her and Projek SAMA at 016-6731909 or [email protected]

** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.